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Drug Possesion


Drug Possession and Being Under the Influence of Illegal Drugs

The Health and Safety Code designates the various drugs which are illegal to possess. These include:
Marijuana and Concentrated Cannabis (hashish) (HS 11357)
Methamphetamine and Amphetamine based products (such as ecstasy) (HS 11377(a))
Cocaine and Cocaine Base (HS 11350(a))
Opiates and Opium Derivatives (HS 11350(a))
Hallucinogenic Substances (including LSD, Peyote, and Mescaline) (HS 11350(a))

Possession of most of these drugs is a felony, although some may be reduced to a misdemeanor. It is also a misdemeanor to be under the influence of any opiate, cocaine, or amphetamine product under HS 11550(a). While being under the influence is only a misdemeanor, it carries a minimum sentence of 90 days in jail. It is also illegal to possess drug paraphernalia used for injection (needles) or ingestion (pipe) of opiates, cocaine, or amphetamines. It is NOT illegal to possess marijuana paraphernalia such as a pipe or rolling papers.

If someone is simply possessing or under the influence of drugs, there are various drug programs which may be done in place of a jail sentence, some of which will lead to the charges being dismissed by the court.



Drug Diversion under Penal Code section 1000

The first time someone is arrested for simple possession of drugs or paraphernalia or being under the influence of drugs, he or she may be eligible for Drug Diversion. This program requires an admission to the charge before sending the person to drug classes. The classes will likely include some individual counseling, group counseling sessions, and perhaps some attendance at 12 step meetings such as Alcoholics Anonymous or Narcotics Anonymous. The person is also subject to drug testing to determine the presence of illegal drugs. If the classes are completed and the person does not test positive for drugs, then after 18 to 36 months, the charges will be dismissed. Successful completion of this program allows someone to truthfully say that he or she has never been convicted of a crime (in most settings).



Proposition 36 court and other drug courts

If a person has successfully completed Drug Diversion within the last 5 years or unsuccessfully participated in the program, then Drug Diversion is no longer an option. However, there are other drug programs, such as Prop 36, which can also lead to your drug charges getting dismissed. Prop 36 is also only available for those committing simple possession offenses or for being under the influence. The commission of any other crime (such as a DUI, driver's license violation, theft or property crime) will exclude you from participation in Prop 36 or Drug Diversion. Prop 36 is generally a much more intensive program, which can involve assigned activities as often as 6 days per week, such as individual counseling, group counseling, meetings, acupuncture, and other things designed to help you lead a sober and productive life. Successful completion of Prop 36 can also lead to your charges being dismissed.

Many counties also offer additional drug programs for those who do not qualify for Diversion or Prop 36. These programs recognize that individuals suffer from addiction and may have complex accompanying mental health problems as well. While these programs are often intense and require considerable participation, these programs are often a last resort for those hoping to avoid a prison commitment or extended jail sentence.



Prescription Drug Cases

While many think the police are only concerned with illegal street drugs, there is a growing problem with the abuse of legally purchasable prescription drugs. The most commonly abused drugs include narcotic pain killers such as Oxycodone, Norco, or Vicodin and mood altering drugs such as Xanax or Valium. While it is always illegal to possess prescription pills without a prescription, the possession of many of these drugs is a felony violation. Even if you have ingested all of the drugs, it is still illegal to be under the influence of many prescription drugs under Health and Safety Code section 11550(a).



Possession for sale of Drugs/Transportation of Drugs

While it is a crime to possess drugs without a prescription, if the police believe you are possessing drugs for sale or transporting of a large quantity of drugs for future sale, the penalties are more severe. Possession of either cocaine or opiates is a violation of Health and Safety Code section 11350, 11351 makes it illegal to possess cocaine or opiates for sale. Similarly, possession of amphetamine products is a violation of Health and Safety Code section 11377, 11378 makes it illegal to possess amphetamines for sale. Proving that the drugs were possessed "for sale" can be difficult, often requiring circumstantial evidence of sales (such as the presence of a scale, drugs packaged in small containers for re-sale, packaging materials, or actual evidence of past transactions and money owed).

It is also a crime to transport, sell, furnish, or give away these drugs. Transportation of opiates is governed by Health and Safety Code section 11352, while transportation of amphetamines is governed by section 11379. Both possession for sale and transportation can have more serious consequences than simple possession. Also, possession for sale is a priorable offense, meaning that a prior conviction for possession for sale will increase the potential punishment on future violations of possession for sale.



Possession and/or Cultivation of Marijuana

The simple possession of marijuana is governed by Health and Safety Code sections 11357, with different subsections for different amounts possessed. The simple possession of less than an ounce of marijuana is merely an infraction under HS 11357(b). If one is driving a vehicle, the violation is Vehicle Code section 23222(b), also an infraction. The punishment increases when more than an ounce is possessed, making it a misdemeanor under HS 11357(c). Possession of concentrated cannabis (hashish) may be charges as either a felony or a misdemeanor (at the District Attorney's discretion) under HS 11357(a).

Cultivation (planting, growing, harvesting, drying, or processing) of marijuana is a felony under HS 11358. The possession of marijuana for sale is punishable under HS 11359, again as a felony. The transportation, sale, furnishing, or giving away of more than an ounce on marijuana is also a felony under HS 11360.



Medical Use of Marijuana

Since 1996, it has been legal in California to cultivate and possess marijuana for medical use. The medical marijuana program is defined in HS 11362.5, HS 11362.7, and subsequent statutes. In short, if a physician gives an oral or written recommendation that you may cultivate and possess marijuana, then sections HS 11357 and HS 11358 do not apply. There are various limits on the number of plants and quantity of dried material that one can possess which differ from county to county and from doctor to doctor.

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